Rogers v. McCormick

The Court. Catherine Kennedy died testate at the city and county of San Francisco, April 13, 1887, leaving estate of the value of about twelve thousand dollars. She was thrice married, and left surviving her one son by her second marriage, named John E. Tom-linson. By her last will she devised all of her estate to the said son, John E. Tomlinson, except three small legacies of one hundred dollars each, bequeathed to Sarah McCloskey, John E. McCormick, and Rosa Malone, respectively, and naming James McCloskey as executor. The will was admitted to probate McCloskey appointed [430]executor thereof, and such proceedings were had in relation thereto, that on the eleventh day of December, 1889, a petition was filed by the executor praying a distribution of the estate as in the will provided. On the twenty-third day of December, 1889, Mary Rogers made and filed her petition and opposition in the cause, in which,, among other things, she set out that she was the daughter of Catherine Kennedy, deceased; that by an omission, not appearing to be intentional, deceased wholly failed to provide for petitioner in her last will; that she is entitled to a like share or interest in the estate as though deceased had died intestate, and prayed that one-half of said estate be distributed to her. Thereafter, on the twenty-third day of December, 1891, the matter of the petition of Mary Rogers to participate in the distribution of the estate of said Catherine Kennedy, deceased, came on to be heard. A trial by jury was waived by the parties. The contest was between said Mary Rogers and J. T. McCormick, the executor of the last will of J. E. Tomlinson, deceased, who had before that time departed this life. The question in litigation was as to the maternity of the said Mary Rogers. The decision was in favor of the respondent, said Mary Rogers, who was found to be the illegitimate daughter of Catherine Kennedy, the testator, and one-half of the estate was distributed to her. The appeal is from the decision, and from an order denying a new trial to said McCormick, executor of the last will of said Tomlinson, deceased.

At the trial one McCloskey was called by respondent as a witness on her behalf, and by her attorney questioned as to statements previously made by him in the presence of respondent and her attorneys as to Mrs. Kennedy having told him that she was going to send to Buffalo, New York, for a niece of hers, and that he gave five dollars to her to be used for that purpose; that he had seen Mrs. Rogers, the respondent, at Mrs. Kennedy’s house on Natoma street in April or May, 1886; that the respondent was introduced to him by Mrs.